City of Sacramento v. Faa ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 5 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF SACRAMENTO, No. 20-72150
Petitioner,
MEMORANDUM*
v.
FEDERAL AVIATION
ADMINISTRATION; STEPHEN M.
DICKSON, in his official capacity as
Administrator, Federal Aviation
Administration,
Respondents.
On Petition for Review of Orders
of the Federal Aviation Administration
Argued and Submitted September 1, 2021
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.
Petitioner City of Sacramento (City) filed a petition for review asserting that
Respondent Federal Aviation Administration (FAA) amended five flight
procedures without complying with the Federal Aviation Act, 49 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 44715(a)(1)(A), the Noise Control Act of 1972, 42 U.S.C. § 4903(a), the FAA
Reauthorization Act of 2018, Pub. L. 115-254, § 175, 132 Stat. 3186 (Oct. 5,
2018),1 the Vision 100 - Century of Aviation Reauthorization Act of 2003 ( Pub. L.
No. 108-176, § 709(c), 117 Stat. 2490 (Dec. 12, 2003), and the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C).2 The City filed its
petition on July 21, 2020, 61 days after the FAA issued the five amended flight
procedures. The petition was thus untimely under the 60-day filing period
provided in 49 U.S.C. § 46110. See 49 U.S.C. § 46110(a) (“The petition must be
filed not later than 60 days after the order is issued. . . .”). The City’s argument
that the order was not issued until it was received by the City is unpersuasive.
Indeed, the City was fully aware of the May 21, 2020 issue date, and that it had 60
days to file the petition. The City appears to have simply miscalculated the
deadline. Such miscalculations, however, are not “reasonable grounds” for failing
to file a timely petition. See Americopters, LLC v. F.A.A., 441 F.3d 726, 734 (9th
1
Because the amended flight procedures did not “propos[e] a new area
navigation departure procedure” or “amend[] an existing procedure” that would
change how aircraft would be directed, the FAA Reauthorization Act of 2018 does
not appear to be implicated. See Pub. L. 115-254, § 175; 49 U.S.C. § 47501, notes.
2
Contrary to the FAA’s argument, the City’s allegation in its Petition that
the amended flight procedures impact noise and safety over the City is sufficient to
confer Article III standing. See City of Las Vegas, Nev. v. F.A.A., 570 F.3d 1109,
1114 (9th Cir. 2009).
2
Cir. 2006). Because the City’s petition is untimely, we lack jurisdiction to consider
it. See id.Even if the City had filed a timely petition, it would not prevail. The FAA
did not violate NEPA or the other noise and/or safety statutes when amending the
five flight procedures due to changes in the magnetic variance, as those changes
merely required the FAA update the flight procedures to reflect renumbered
runways.3 The City does not dispute that the FAA considered the City’s noise
concerns, and determined that the 2020 changes to the five flight procedures were
minor and would not impact noise or safety. The FAA already conducted an
environmental assessment of the flight procedures when they were substantively
amended in 2014, and it is not required to reconsider or supplement its prior
environmental assessment simply because it must update the flight procedures’
runway numbers. See City of Las Vegas, 570 F.3d at 1117 (holding that the “FAA
did not need to produce [a supplemental environmental assessment] for
3
The FAA also did not abuse its discretion when declining to consider
public comments concerning the environmental impacts of the five amended flight
procedures on its website publishing notice of new or amended flight procedures.
The City does not assert that the FAA failed to provide avenues for public
comment when the FAA originally redesigned the flow of air traffic in 2015. The
FAA was not required to repeat that process when updating runway numbers. See
State of California v. Block, 690 F.2d 753, 771 (9th Cir. 1982) (cautioning that
“requiring agencies to repeat the public comment process when only minor
modifications are made promises to prolong endlessly the NEPA review process”).
3
[modifications to flight paths] because the modifications were not significant”); see
also Morongo Band of Mission Indians v. F.A.A., 161 F.3d 569, 583 (9th Cir.
1998) (holding that FAA action which had an “insignificant impact on the existing
use of the land” did not violate the law and therefore plaintiffs were not entitled to
relief under 5 U.S.C. § 706(2)); Hells Canyon Pres. Council v. U.S. Forest Serv.,
593 F.3d 923, 933 (9th Cir. 2010) (reasoning that while a court may compel an
agency to act, the court has “no basis for compelling” an agency to adopt a party’s
“preferred” course of action). All pending motions are denied as moot.
PETITION DISMISSED.
4